I just read a wonderful article by Jed Rubenfeld: The Freedom of Imagination: Copyright’s Constitutionality [via Felten].

Imagine a country where reciting a poem in public could get you thrown in jail, the article suggests. You live in that country. Copyright law, of course, prevents public performance of a copyrighted work like a poem.

The article convincingly argues that copyright’s restriction on derivative works is a clear violation of the First Amendment. It shoots down the five common arguments to the contrary:

The author goes on to suggest a form of copyright that would be constitutionally-permissible. Instead of preventing or punishing those who express derivative works, it could require that they pay a portion of their profits to the author. This wouldn’t prevent anyone speaking (by definition, profit is a gain; taking it away would make you no worse off than if you had never done the thing at all) and would allow people to give away modified works for free, but would give authors what many feel is a just return for their work.

In this world, anyone could make Harry Potter into a movie or stage show, as long as they paid J. K. Rowling a portion of the money the make. Different adaptations and interpretation of the works would flourish; the public would get a chance to experience all sorts of new creative expression, here-to-fore impossible. This makes sound policy sense to me: the public gets the right to express it self, and creators of intellectual works get paid. But, as the author points out, it’s irrelevant what you think of it as policy; it’s required by our Constitution.

Finally, the author presents a unified theory of the First Amendment: it protects the freedom to imagine, express what you’ve imagined, and listen to that expression. It doesn’t protect the right to misrepresent what you’ve imagined as fact (thus libel, perjury, and false advertising laws), nor does it protect the right to act out your imagination (you can’t break someone’s nose to express what you imagine a broken nose feels like). However, it does protect the freedom to imagine alternate beliefs (thus freedom of religion) or alternate governments (thus petitioning for a redress of grievances).

Back to the subject of copyright, it doesn’t protect those who copy others works verbatim (that requires no imagination) but it does protect those who perform it, rework it, or express it — those who add their own spark of creativity to that which has come before. It’s time for copyright law to stop suffocating the resulting flame and let it grow, as the First Amendment requires.
[I’m sure I cannot do justice to the cogent and well-expressed arguments of this fifty-page paper, but I hope I’ve given you some idea of them. If you’re interested, I recommend you read it for yourself.]

posted December 07, 2002 05:59 PM (Politics) #


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How to Run a Good Conference
How Total Information Awareness Works: A Simple Guide
piracy, bits, and meatspace
Explaining Spectrum, RDF
OS X Hack: Printing 4-up to Save Paper

Aaron Swartz (me@aaronsw.com)